Westchester Guardian/The Advocate.

Thursday, October 9, 2008

The Advocate
Richard Blassberg

DA DiFiore Attempts, Once Again,
To Preserve A Wrongful Conviction
Fires Off Appeal Within 24 Hours Of Bellantoni’s DiGuglielmo Decision

On Sept. 19, 2008, within one day of the issuance of Judge Rory J. Bellantoni’s decision freeing Richard DiGuglielmo, District Attorney
Janet DiFiore filed a Notice of Appeal with the New York State Supreme Court, Appellate Division, Second Department, as well as an Affirmation, a Memorandum of Law, and an Order To Show Cause, in contemplation of action by that Court, prepared by Assistant District Attorney Robert K. Sauer. Mr. Sauer, together with ADA Timothy Ward, had represented the District Attorney’s Office at the, frequently combative, eight-day evidentiary hearing, that developed from the 440.10 Motion submitted by DiGuglielmo.

Richard DiGuglielmo was a New York City Transit Police Offi-cer with 12 years on the job when a violent incident occurred in the parking lot of his family’s Dobbs Ferry deli, October 3, 1996; an incident that would involve a batwielding assailant, who, after severely injuring the officer’s father’s hand and leg, was shot and killed while attempting to strike the father’s head.

At the time of the incident, there were three, and only three, eyewitnesses who saw the incident unfold, including the firing of three shots
by Officer DiGuglielmo as Charles Campbell was swinging at the of-ficer’s middle-aged father’s head with a metal baseball bat. Each of the three eyewitnesses had initially reported to the Dobbs Ferry Police that Of-ficer DiGuglielmo’s firing of three shots at Campbell was in self-defense
because, as one of them stated, Campbell would have “crushed his (the elder DiGuglielmo’s) head like a watermelon.”

The 440.10 Motion was brought about by the discovery that, although at the grand jury, and at trial, the key prosecution witness, Michael Dillon, had testi-fied with statements that supported the Prosecution’s position that the shooting was a bias crime, and, that there was no immediate threat to the life or safety of the elder DiGuglielmo from the bat-toting Charles Campbell, there had been no fewer than 4 statements elicited
from him by Dobbs Ferry Police in their coercive effort by harassment and intimidation to get him to come off his original account of self-defense.

In the course of the hearings, another of the eyewitnesses, Jimmy White, who also had undergone similar treatment by the Dobbs Ferry Police, but who never changed his account, came forward to describe, for Bellantoni’s Court, the coercive tactics employed by Dobbs Ferry Police Chief George Longworth and his threeman detective bureau. Testimony by Detective Guarneri, and then lead prosecutor, high-ranking Assistant District Attorney Patricia Murphy, was “not credible”, and was inneffectual in countering either Dillon or White’s testimony, particularly with regard to their repeated nightly ordeal at the hands of Dobbs Ferry Police between October 3 and October 8, 1996.

Those familiar with Mr. Sauer’s work will recognize the cynicism and distortion of fact so often employed in his appellate presentations. His reference to “a long line of disputes initiated by the Defendant’s father, the deli’s propieter, due to his bizzare obsession over the parking spaces in his lot,” neglects the truth; firstly, that the elder DiGulielmo had merely placed a sticker on Charles Campbell’s car window, as instructed to by Dobbs Ferry Police and, secondly, that it was Campbell who came running across the street, fists flying, to punish him for doing so.

Sauer speaks of, “The jury, having rejected his (DiGuglielmo’s) Justification Defense on the bases of the testimony of sixteen eyewitnesses to all or parts of the events, nine of whom saw the actual shooting, and testified that the victim, while holding a baseball bat when he was shot, was, in fact, in a defensive posture and not swinging the bat when the Defendant fired his weapon.” The bullet entry wounds clearly suggested otherwise.

It is astounding the lengths the Westchester District Attorney’s Office has been willing to go to, both under Jeanine Pirro and Janet DiFiore, to protect and preserve wrongfully-obtained criminal convictions. Prior to the trial Pirro was fond of speaking about, “thirteen witnesses who heard racial epithets.” At trial she couldn’t produce one.

As regards Mr. Sauer’s “sixteen witnesses;” there were only three eyewitnesses to the entire encounter, including the shooting, Cablevision repairmen Kevin O’Donnell and Michael Dillon, who witnessed the incident from the cab of their company van and Jimmy White, a school teacher and a local customer who was at the deli having come home from work. Of those three, the Prosecution did not get much mileage out of O’Donnell, who had damaged his own credibility attempting to come off as a hero, initially, claiming that he had jumped from the van and attempted to stop Campbell from beating Officer DiGuglielmo’s father with the bat; not very supportive of the DA’s theory. Jimmy White, who refused to be turned by the Dobbs Ferry Police, was not used by the Prosecution for obvious reasons, nor by the Defense because he refused to
meet with Defense attorneys prior to testifying.

That left one witness who could be used by the Prosecution, effectively, Dillon, who had changed his account after four nights of being
hounded by Dobbs Ferry Police; taken from his job in Mamaroneck each night by three detectives and the Chief of Police, until he finally
gave them the account the District Attorney wanted from him.

On page 13 of the District Attorney’s Affirmation, Mr. Sauer tells the Appellate Court the same lie that the Office had offered to Mr. DiGuglielmo’s attorneys, and to County Court Judge Bellantoni nearly a year ago, stating, “Prior to the hearing, the People notified the Defense that the search for reports of any meetings with Michael Dillon and the Dobbs Ferry Police Department between October 3 and October 7, 1996, conducted by the Dobbs Ferry Police Department under the supervision of Police Chief Betsy Gelardi, had met with negative results, and that no
such interviews had, in fact, taken place.”

After so many years under Jeanine Pirro, and now under Janet DiFiore, a combined total of nearly 15 years, it is obvious that for Mr. Sauer, and, indeed, the entire Appeals Bureau of the Westchester District Attorney’s Office, the line between truth and fiction has been so blurred as to be
virtually nonexistent. The acts of prosecutorial misconduct and Constitutional violation have been so many and so repetititve as to be virtually indefensible by truthful explanation. Both in the State Supreme Court, Appellate Division, and the Second Circuit Court of Appeals, we have witnessed baldfaced lying on numerous occasions by Assistant DAs who know that even if they are caught lying, they will suffer no consequences.

There can be no question that the Appellate Division and the Court of Appeals, the State’s highest tribunal, have, for decades, displayed a distinct bias in favor of the prosecution in homicide cases, particularly those involving so-called Depraved Mind, or Depraved Indifference Murder. A nebulous concept, from the moment it was made a part of the Criminal Code in 1967, for four decades it served as a fall-back, or safety net, for prosecutors with weak, poorly investigated Intentional Murder cases.

Not until March 2004 with the Gonzalez decision in a case out of Rochester, in Monroe County, did the Court of Appeals begin to grapple with the problem it had allowed to fester for nearly 40 years. By that time, hundreds of individuals had been convicted of Depraved Indifference Murder when, in point of fact, their act in taking a life was not the least bit indifferent.

Application of the statute reached the point of scandal as prosecutors, such as Jeanine Pirro, with little concern for finding truth, but a heavy commitment to their political careers, would offer juries a smorgasbord choice between Intentional and Depraved Indifference Murder, each
carrying a 25-year to-life sentence.

Even now, despite a succession of cases since Gonzalez and Payne, the high court has refused to definitively deal with the problem, and many judges still do not grasp the fine distinction, the level of recklessness, and indifference needed to meet the threshhold.

Judge Bellantoni’s decision, while dealing with the issues surrounding Depraved Indifference Murder, given that DiGuglielmo was acquitted of intentional murder in the Second Degree, as well as assault, nonetheless was predicated essentially on the tainted prosecutorial presentation, including the failure of the Prosecution to share the original statements of Michael Dillon and Jimmy White with the Defense, as well as the process by which Michael Dillon’s statement before the grand jury, and at trial, were achieved.

Assistant District Attorney Sauer, in his Memorandum of Law, in an attempt to distort the intrinsic role of Depraved Indifference Murder in Judge Bellantoni’s calculations, repeatedly refers to “the likelihood of reversal of the trial Court’s order dismissing the indictment is, in light of Policano virtually a foregone conclusion.” Mr. Sauer attempts to skirt the real issues that provoked the decision to grant Richard DiGuglielmo’s 440.10 motion, the Brady and Rosario violations, as well as the overall tainted prosecutorial activity that produced both the indictment and the conviction at trial, instead suggesting that DiGuglielmo’s release resulted from the trial Judge’s “disregard of the significant principal of stare decisis
by conferring on the defendant retroactive application of the ‘New Depraved Indifference Rule.’”

The fact is, Judge Bellantoni was not releasing Richard DiGuglielmo based upon Policano, but merely observing that having overturned both the conviction as well as the indictment from which it sprang, because each was achieved through unlawful prosecutorial misconduct, Defendant DiGuglielmo, having been acquitted of Intentional Murder, cannot be reindicted under the Statute of Depraved Indifference Murder, as the Court of Appeals has redefined it, for an act that was clearly intentional: “Three shots to center mass at close range.”